Calls for a ‘Hillsborough Law’ and increased accountability of public servants have been voiced for many years.  However, despite a number of independent inquiries and investigations, litigation and even draft legislation being prepared, progress towards a statutory duty has been slow.

When Andy Burnham, then MP for Leigh, proposed a statutory duty of candour for public authorities back in 2017, he no doubt hoped that progress might now have been made.

His draft Public Authority (Accountability) Bill (also known as Hillsborough Law), prompted by his involvement with the Hillsborough families, would have required public authorities to be open, transparent and honest and to admit responsibility following public disaster and mass casualty incidents, potentially even before court proceedings had been intimated.

That Bill was put on hold following the snap General Election in May 2017, and the recent Conservative government stepped back from introducing a statutory duty, establishing instead the Hillsborough Charter.

However, the King’s Speech has confirmed that the current Labour government intends to proceed with the introduction onto the statute books of a Hillsborough Law. At his first Labour Party conference as Prime Minister, Sir Kier Starmer, also promised that a ‘Hillsborough law’ will be introduced in Parliament before the next anniversary of the 1989 football stadium tragedy in April 2025.

What will Hillsborough Law say?

There is currently no draft legislation before Parliament, but it is likely that any future wording will closely mirror the above-mentioned Public Authority (Accountability) Bill. That draft legislation proposed establishing a statutory duty of candour, requiring public authorities, public servants and officials to:

• act at all times in the public interest and with transparency, candour and frankness, and to detail the measures taken to further to these objectives in a published Code of Ethics;
• assist court proceedings, official inquiries and investigations where their own acts or omissions are (or may be) relevant; and
• disclose information which may change the scope of any proceedings, inquiry or investigation.

The draft Bill proposed that ‘public authority’ be given the wide-ranging and inclusive definition: “any national or local government department… institution or agency engaged in functions of a public nature… [this] includes entities with a private structure but which are majority owned by public funds.”

To ensure compliance with the proposed duties, it was suggested that new offences be created for failure to discharge the duty, punishable by a fine and/ or custodial sentence.

Offences would also be committed by public servants, if they intentionally or recklessly misled the general public, the media or proceedings. In addition to an organisation’s offending, individuals would also be liable if by their acts or omissions they hindered their authority’s compliance with its the duty.

Parity of funding

Hillsborough Law also suggests that bereaved families and ‘core participants’ at inquiries and inquests be entitled to publicly-funded legal assistance and representation at the same level, or in proportion to, the resources available to the public authority, to ensure a parity of arms.

What could this achieve?

When introducing the initial draft of what is now the Hillsborough Law back in 2017, Andy Burnham summarised the motivation as “simple”:

“It [is]…to protect other families from going through what the Hillsborough families went through and from a similar miscarriage of justice. It empowers victims to secure disclosure of crucial information and prevent public authorities from lying to them or hiding the truth by making that an imprisonable offence… it creates a level legal playing field at inquests for bereaved families so that finally inquests become what they should always be – a vehicle to get to the truth.”

Hurdles to implementation

However laudable the aims may be of seeking to level the playing field between bereaved families and well-funded public authorities during investigations into mass casualty events, there are serious and fundamental procedural questions which need to be addressed before for any such duty can achieve its intended objective.

Primarily, it remains unclear exactly what is intended by ‘candour’ other than a general duty to be open and honest. In any event there is an inherent tension with a potential defendant’s right to silence: where someone asserts that right, they are unlikely to be guilty of lacking candour – and to hold otherwise would fundamentally undermine well established principles of criminal justice. However, the idea that any assertion of the right of silence should be subject to third party scrutiny or assessment of reasonableness is seismic to say the least.

Another difficulty is that until draft legislation is available for comment, proposals for a Hillsborough Law leaves open to interpretation the definition of a public tragedy. The answer may be that the public will know a tragedy when they see one, but the definition cannot simply be determined by the number of people injured or who have died. To set any such arbitrary distinction risks severe unfairness and injustice.  In addition, any pledge in terms of activation of an emergency plan and deployment of resources to support the bereaved is perhaps only a restatement of the current emergency services framework and is not really an extension of the existing procedures already in place.

The proposal to extend legal assistance to bereaved families is likely to receive widespread support. However, the very significant cuts to the legal aid budget in recent years and continuing austerity generally begs the question: where will the money come from?

Interestingly, the 2017 Bill proposed a limit on the legal spend of public authorities in responding to inquests and inquiries, the logic being that the requirement for them to ‘come clean’ at the outset will reduce the length of investigations and thereby ensure costs savings for all. Any such limits may however fetter the ability of public authorities to fully and properly articulate their case when responding to investigations.

Also, it is often extremely difficult at the outset of an inquiry or inquest to estimate the overall costs that may be incurred. Were a cap to be introduced in responding to any such proceedings, the basis for this would need to be carefully considered, to ensure that all parties are capable of achieving full and proper advice and representation.

In addition, of the organisations which have to date voluntarily accepted responsibility in the immediate aftermath of adverse incidents, there has been little acknowledgement of their acceptance or explicit reduction in fine imposed.

Whilst there may be a very strong moral imperative for public servants to be open and honest following tragedies, absent a ‘stick’ with which to enforce compliance and punish breach, there remains a question as to how compliance will – or even can – be enforced.

However, there does not appear to be any comparable or tangible ‘carrot.’ In the absence of an acknowledged benefit or (financial) incentive for being candid, a potential defendant to further investigation is likely to consider themselves caught between a rock and a hard place.

Conclusion

Whilst it now appears that progress will be made towards establishing a statutory Hillsborough Law, which will be welcomed by many and may be seen as going some way towards addressing the concerns and queries raised by the families following that disaster and subsequent litigation, there are equally fundamental questions and clarifications which are required to be openly debated before any proposed legislation can be enacted.

The law does not operate in a vacuum and were the Hillsborough Law to be enacted in the terms previously suggested in 2017, this would cause significant tension within the criminal justice system and simply could not be imposed unilaterally without detailed and considered consideration of parallel issues which would be naturally flow from the proposals.

If Hillsborough Law is to become a reality then there needs to be careful consideration of the potential, but significant, implications to ensure that there is genuinely fairness to all parties concerned.